The Right to Dispose of a Decedent’s Remains

Probate & Estates Fiduciary Code – Section 305

This statute provides for that absent an allegation of “enduring estrangement”, incompetence, contrary intent or waiver and agreement, which is proven by clear and convincing evidence, a surviving spouse shall have the sole authority in all matters pertaining to the disposition of the remains of a decedent. If there is not a surviving spouse, the next of kin shall have sole authority, absent an allegation of “enduring estrangement”, incompetence, contrary intent or waiver and agreement proven by clear and convincing evidence.

“Enduring Estrangement” is defined as a physical and emotional separation from the decedent at the time of death which has existed for a period of time that clearly demonstrates an absence of due affection, trust and regard for the deceased. “Next of Kin” is defined as the spouse and relatives by blood of the deceased in the order set forth by the PA intestacy Statute (that is, first children, then parents, then brothers, sisters or nieces and nephews, grandparents, then aunts, uncles and their children and grandchildren, and then, finally the Commonwealth of PA) so long as the person is an adult or an emancipated minor.

A challenge to the authority of a person to make final disposition, alleging that there has been enduring estrangement, etc., made within 48 hours of the death of the decedent, may be filed with local court, which may order that no final disposition of the remains be made until a final determination is made on the challenge.